May 2006

Greetings all. I was able to find time to prepare this update thanks to the abject failure of the Vancouver Canucks to make the playoffs. Thankfully my time in Edmonton on the Alberta class actions has not (yet) turned me into an Oilers fan, or this update might have been tied up until July!
As always, if you've missed any back issues of this report, they can be viewed at http://classactionsincanada.blogspot.com/

STATS
As I have just finished the bi-annual update of the book, I thought you might like some updated stats from the three major provinces.
Quebec: As of 2005, 699 motions for certification had been filed. 319 certification decisions had issued. Certification was granted in 171 of those cases. 52 actions had reached judgment on the merits, with the class claim being successful in 32 of those cases.
Ontario: As of March 2006, there have been 173 certification hearings. Of 102 contested certification hearings, 58 were certified. In 71 cases, the defendant did not contest certification. Eleven Class actions have proceeding through to judgment. Fifty-nine cases have had settlements, 39 as part of an uncontested certification.
BC: As of March 2006, there have been 79 certification hearings. Of 47 contested hearings, 30 were certified. Thirty-two certifications proceeded by consent. Three cases have proceeded through to judgment.

SUPREME COURT OF CANADA STRIKES PENSION CLASS ACTION
In Bisallion v. Concordia University, 2006 SCC 19, the Supreme Court confirmed that the pension dispute should be addressed by a labour arbitrator under a collective agreement, rather than in court through a class action. The court left open whether the non-unionized employees could have started their own class action.
AGENT ORANGE APPLICATION FOR STAY GRANTED AND NATIONAL CLASS ISSUES CONSIDERED
Dobbie v. Canada (Attorney General), 2006 FC 552: This case involved a motion by the defendants for a stay of proceedings on the ground that the Crown wanted to institute third party proceedings against Dow Chemical Company and Monsanto Company in respect of which the Federal Court lacked jurisdiction. The court granted the stay stating: "[T]he Court concludes that: 1. the Crown genuinely intends to commence third party proceedings against Dow and Monsanto; 2. the Federal Court does not have jurisdiction to hear and determine these third party claims; 3. section 50.1 of the Federal Courts Act makes the granting of a stay in this case mandatory; and 4. section 50.1 of the Federal Courts Act is constitutional, and does not violate the constitutional principles of "order and fairness" as set out by the Supreme Court of Canada."
Notably in considering the constitutionality of the provision, the court stated that "New Brunswick may have a "real and substantial connection" to this lawsuit because it is where any wrongful acts were committed. In this way, the application of section 50.1 of the Federal Courts Act is not contrary to the constitutional imperative of "order and fairness" in our national judicial system because New Brunswick has jurisdiction to hear a national class action including the third party claim. The fact that other provinces also have jurisdiction with respect to a national class action in this matter is a reality in our federalist structure, but the costs of such duplicate litigation in this case may deter any other such class action. Accordingly, section 50.1 of the Federal Courts Act does not violate order and fairness in our federal structure." Hence, even the federal court does not seem inclined to help solve the national class chaos. For a recommended solution to this problem see: http://www.branmac.com/go/download/ULCC_Report.pdf

PRODUCTS CASE DENIED CERTIFICATION IN SASK
One of these provinces is not like the others...
In Sorotski v. CNH Global N.V. 2006 SKQB 168, the plaintiff sought to have an action certified on behalf of all persons who purchased Case Quadtrac 9370 tractors in Canada and who suffered financial losses due to problems (severe cracks, fraying and shredding) with their tractors' tracks. The court rejected certification stating: "In considering the evidence relating to the representative claims of Mr. Sorotski and Mr. Herle, and the causes of action as set forth in the statement of claim, I am of the view that there are numerous individual issues that will have to be addressed before making any determination on liability. It is difficult to ascertain from the plaintiff's causes of action what the appropriate common issue might be said to be. To that end, the plaintiff suggests a complaint with the tracks; however, even that complaint, as pleaded, is not common. In considering the expert reports which have been filed by the plaintiff and the defendant Goodyear, such reports reflect the difficulty in identifying a "common" defect with the tracks...Further, in considering the parameters of the potential claims of Mr. Sorotski and Mr. Herle, I am of the view that the liability issues relating to each of them will be different in a significant fashion. Also, in addressing the question of potential damages, I am satisfied from the material that there will be numerous individual issues which must be resolved in order to fairly adjudicate the claims of individual parties. What would amount to virtually a tractor-by-tractor examination will be required in the present instance to determine the defendants' liability to any particular member of the proposed Class. Theoretically, were it to be determined by the trier of fact that there is an inherent defect in the tracks used on the Quadtrac tractors in question, no Class member would be entitled to a remedy without also demonstrating that the tracks on that claimant's Quadtrac tractor exhibited physical deterioration, that the inherent defect is a significant contributing factor in such deterioration and that compensable loss has been sustained as a result."
On preferability, Nordheimer J. (oops sorry) Allbright J., stated: "In the present case, I am of the view that a class action proceeding does not address either aspect of the concept of preferability. Firstly, even if the Court is able to formulate a common issue to be determined, there will be numerous individual issues that need to be litigated prior to the resolution of the claim. Secondly, I am not persuaded that a class action would be advantageous over the various other options that are open in this case either to Mr. Sorotski or to Mr. Herle. The evidence tends to suggest that the damages for many members of the putative Class would be less than $50,000 and therefore could be litigated expeditiously under the Court of Queen's Bench provisions dealing with simplified procedure. In those instances where the damages would be in excess of $50,000, the general procedure provisions would be available. In some instances, the damages would perhaps be demonstrably minimal and the small claims procedure might be even be available to such a litigant."

PRE SETTLEMENT NOTICE PROCESS APPROVED IN RESIDENTIAL SCHOOLS CASE
In Baxter v. Canada (Attorney General) [2006] O.J. No. 1213, the court approved the pre-certification notice program based on expert evidence of likely penetration of the program. The court also dismissed objections about the 38 day period between notice and the approval hearing stating: "There are however, two facets of this process which trump the objection. First, the Ontario approval hearing is the first in a series of similar hearings which will continue in courts across Canada until June 2, 2006. It is the intention of the parties that all objections received during the series of hearings will be provided to all courts hearing the approvals motions. Accordingly, it is not the case that a class member who fails to file an objection in time for the actual hearing in Ontario will have forever lost the opportunity to have that objection considered. In fact, he or she will have at least an additional 25 days for a total of 63 to make his or her objection known to the court. That period is in keeping with the norm in most class actions. A second consideration for the court is the fact that many of the proposed class members are elderly and, as such, time is of the essence for that segment of the class. The benefits of an expeditious process for that group, coupled with the actual 63 days that will be available for the filing of objections, argues in favour of permitting the notice and approval process to proceed as requested by the plaintiffs."

IPOD CASES CONSIDERED
In St-Germain c. Apple Canada inc. 2006 QCCS 1282, the court certified a class action on behalf of all the people who bought a iPod or a mini iPod in Quebec between December 12, 2003 and December 14, 2004. The case related to the legality of the royalty charge included in the price. Apple alleged that the case was an abuse of process since Apple took immediate steps to process a refund. However, the court held that its hands were tied because the conditions of Article 1003 were otherwise met. (The hazards of not having an express preferability requirement perhaps, which requirement has been used to reject class actions in common law cases of prompt voluntary action by defendants). The court did exclude anyone who had already received a refund from the class definition however.
Royer-Brennan c. Apple Computer Inc., 2006 QCCS 2451 was a carriage/stay motion in relation to duelling Ipod Nano scratched screen cases. The court applied Quebec's "first to file" rule, and stayed the second filed action until resolution of the first action. The fact that there was an additional defendant in the second filed action did not change the result.
PENSION CASES CONSIDERED IN SASKATCHEWAN, QUEBEC AND ONTARIO
May v. Saskatchewan, [2006] S.J. No. 164, 2006 SKQB 145: The plaintiff sought to represent all individuals who are or who may be entitled to a pension payment from the Public Service Superannuation Plan administered by the defendant, the Government of Saskatchewan. The case was certified.
Jobin c. Montréal (Société de transport de), 2006 QCCS 1380: Pension surplus case struck based on the cause of action requirement.
In Gorecki v. Canada, 2006 OJ 1130, the class asserted a claim for interest on a lump sum retroactive payment a Canada Pension Plan disability pension. The lower court struck out the claims for breach of trust, breach of fiduciary duty, and unjust enrichment as disclosing no reasonable cause of action. The lower court refused to strike out the claims based on constructive trust and the inherent power of the Superior Court to award interest. On appeal the Court of Appeal held that these claims should fall as well.
Potter v. Bank of Canada, [2006] O.J. No. 739: This was two-part motion brought by the Bank. It sought to strike out those portions of the statement of claim in which the plaintiffs claim an entitlement to have damages paid directly to them. Second, the Bank asked for a declaration that the CPA was inapplicable to the plaintiffs' claim. The court did strike the claim for direct payments, leaving only declaratory claims. The court then struck the claim under the CPA stating: "Absent the claims for Direct Payments, the plaintiffs' action could be brought as a representative proceeding under the Courts of Justice Act and the Rules of Civil Procedure. If the claims for direct payments are struck out, all the remaining relief pleaded in the Statement of Claim relates to the determination of a question arising in the administration of a trust. As a result, the plaintiffs' claims could be brought as a representative action or application. I accept the submission of the Bank that the plain interpretation of section 37 of the CPA is that the CPA does not apply to this proceeding. The legislative intention behind the section is that the procedural requirements under the CPA, for example, the certification of an identifiable class, notice to the class, opting out to maintain an individual action [*21] are irrelevant and inappropriate and unnecessarily burdensome in cases that may be brought in a representative capacity."
LITE CIGARETTE CASE SURVIVES
The BC Court of Appeal affirmed certification of a lite cigarette class action: Knight v. Imperial Tobacco, 2006 BCCA 235. However the court narrowed the class period substantially in order to negate limitation period issues. The court also removed any Trade Practices claim, because that predecessor statute did contain its own representative action provision.
On the preferability question, the court stated: "Heads (v) to (vii) contained in the certification order granted by Satanove J. deal with the issue of whether or not the defendant engaged in deceptive acts or practices concerning its light and mild brands of cigarettes and whether the court ought to grant the relief sought of an injunction and an order that the judgment of the court be advertised. These injunctive and advertising remedies were and are available under the applicable legislation. As I observed supra, it seems to me that the question of whether or not it can be established by the plaintiff that there have been deceptive acts or practices committed by the defendant in marketing cigarettes is central to the claims advanced on behalf of the plaintiff. Given the broad definition of deceptive acts or practices which includes acts or practices capable of deception, the question of deception or no deception is something that can, in my opinion, be litigated without reference to the circumstances of the plaintiff or individual class members. The situation with respect to this issue is somewhat analogous to that in Rumley, where there was an allegation of systemic negligence made against a defendant."
In relation to the request for aggregate damages, the court stated: "Although there may be elements of novelty and difficulty with the proposed methodology of damages calculation advanced by the respondent, it seems to me that it is appropriate for this issue to be left to be worked out in the laboratory of the trial court. Then, if and when the issue reaches this Court, we will have the benefit of a full record upon which to assess the appropriateness of any damages award that may be made pursuant to the proposed methodology. I would be reluctant at this stage of this proceeding to foreclose the respondent from litigating this issue as he proposes before the trial court. Accordingly, I would afford deference to the decision of the learned chambers judge to permit this damages issue to be litigated as a common issue. I would not accede to the arguments advanced under this head by the appellants."

YVES LAUZON REMOVED FROM FILE DUE TO CONFLICT
Yves Lauzon has been removed as class counsel in the Norbourg investment class action due to an apparent conflict of interest. Mr. Lauzon was a major investor in the company, had separate judicial proceedings ongoing alleging ownership of certain specific funds, and had represented another material witness in the case: Pellemans c. Lacroix, 2006 QCCS 2256.

CLASS LIBEL CLAIM SUCCESSFUL
A class libel claim against a radio host brought by Arab and Haitian cab drivers was successful: Malhab c. Diffusion Métromédia CMR inc. 2006 QCCS 2124. The court awarded a collective recovery of $220,000 in favour of the class, to be designated to a public interest group. (Note that the case was brought pursuant to Quebec's own Charter of Rights, whereas the common law courts have generally rejected such group libel claims).

NUISANCE CLASS ACTIONS CERTIFIED
Regroupement des citoyens contre la pollution c. Alex Couture inc. 2006 QCCS 950: The court did revise the definition so that casual visitors to the area were excluded. Notably, this was an "offensive odour" case, which are not generally certified outside Quebec. The court held that the common issues need not predominate in Quebec stating: "Les questions communes n'ont pas non plus à être prédominantes ni prépondérantes." Similarly in Krantz c. Québec (Procureur général), 2006 QCCS 2143, the court certified a noise class action flowing from certain highway work. Again, the class was limited to residents. Certain engineering firms were let out.

NEGATIVE OPTION CASE REFUSED CERTIFICATION
Epp v. Alma Mater Society of the University of British Columbia, 2006 BCSC 659: The claim was that the defendant violated the Consumer Protection Act by automatically assessing a fee of $180 as part of her tuition and student assessments. The application was rejected for several reasons. The court stated: "For the Consumer Protection Act to apply to the Plan, the AMS must be a "seller"; the delivery of the benefits to its members must be an "unsolicited service"; and there must be "a negative option offer".
On the requirement for 2 or more class members, the court stated: "While attending UBC, Mr. Zaitsoff has been continuously employed by the plaintiff's counsel's law firm. He admitted in cross-examination on his affidavit that he has worked in the preparation of the plaintiff's case. It is questionable whether Mr. Zaitsoff, an employee of the plaintiff's counsel, who has admittedly worked on the preparation of this case, could qualify as a suitable person to meet the requirement of a second member of the class. Furthermore, the writ and statement of claim were filed by the plaintiff's present counsel on August 31, 2004. It is therefore difficult to understand how Mr. Zaitsoff, who paid his fee with respect to the Plan for the 2004-2005 academic year, could have been unaware of the opt-out provisions. There is no evidence that any other members of the "proposed class" support this litigation. There is no evidence that any of the AMS members were unfamiliar with the opt-out procedure or had difficulty in complying with it."
On preferability: "Ms. Epp was the author of her own misfortune. She was advised of the simple opt-out procedures and, instead of taking those steps, she wrote a hostile letter to the AMS, providing no contact information that would permit the AMS to respond. When she pursued the AMS in Small Claims Court, the AMS agreed to provide her with the refund she had demanded. As she had successfully opted out of the Plan in 2003, there was no point in providing her with the disclosure notice she demanded. Ms. Epp has also failed to discharge her duty under s. 5(5)(b) of the Act to disclose all facts material to the application. The fact that UBC students approved the Plan in two referenda is material to a number of issues in this case, particularly the issue of whether the defendant has engaged in any conduct that requires modification. A fair examination of the material facts reveals that the AMS' conduct in instituting the Plan was benevolent rather than reprehensible. Contrary to the plaintiff's assertion, the AMS has not contravened any consumer legislation."
On adequacy: "I have no doubt that Ms. Epp would "vigorously prosecute the claim"...However there is no evidence that Ms. Epp shares common interests with other proposed class members. In fact, her interests are in conflict with those students who fit the proposed "class" but who are not aggrieved...If the plaintiff were successful, and the AMS refunded fees to all students who had paid those fees since 2002, and did not make claims, the likely result would be that the Plan could no longer be offered. No insurer would be prepared to continue extending health care benefits at the present cost in the absence of universal coverage. If the Plan were discontinued, UBC students would lose the very benefit that they had approved in the referenda."
One gets the impression that after the court decided the case made no sense (which was probably correct), this motivated a very narrow interpretation of the balance of the requirements. i.e. there has traditionally been no requirement to show class member "support", and it is hard to see how there was a true "conflict of interest" any more than in any products case where a successful judgment might stop production of a product that some class members may have liked.


CELL PHONE CLASS ACTION CERTIFIED
In Diamond c. Bell Mobilité inc. (Bell Mobilité Cellulaire inc.), 2006 QCCS 2063, the court certified a case alleging service interruptions.
HOCKING FOLLOW UP
Readers will recall the recent decision of the Quebec court refusing to enforce an Ontario class action settlement. We have now obtained a copy of the order in Ontario refusing the Quebec plaintiff's application for intervention into the Ontario settlement approval: Hocking v. HSBC (June 20, 2005) (Ont.SCJ). The court rejected the application to intervene on the basis that the claim was in personam and not in rem, which was the main hook being used by the Quebec plaintiff to gain entry to the Ontario proceedings.

REPLY STRUCK
In a proposed class action against the Province of Alberta regarding the need to file service plans for children in case, the court struck the Plaintiff's reply pleading on various grounds: CHS v. Alberta, 2006 ABQB 241. The author is co-counsel for the Province in this matter.

APPLICATION FOR PRIVILEGED DOCUMENTS DISMISSED
In the certified action Reid v. British Columbia (Egg Marketing Board), 2006 BCSC 346, the plaintiff requested production of certain reports about discussions with legal counsel about specialty egg pricing. The application was dismissed.
COURT SEEKS TO DETER PRE-CERTIFICATION MOTION THROUGH COSTS
Punit v. Wawanesa Mutual Insurance Co., 2006 A.C.W.S.J. LEXIS 742, the court considered the costs payable in relation to pre-certification motions brought by the defendant that were partially successful. In the first motion, the defendants successfully applied to strike out portions of the plaintiffs' certification records. They also applied to stay the non-Ontario claims, but this was adjourned over to the certification motion. The court awarded costs to each of the defendants in relation to the first motion at $5000 each, but stated that it would only be payable if the defendant were successful in the certification motion. The Plaintiff was awarded $12,000 for the second motion, but this would only be payable if the Plaintiff successfully certified the non-Ontario claims. The court acknowledged that this delay in the payment of costs was unique, but held that there was a policy purpose sought to be achieved: "In my view, the aim in a Class Proceeding should be to get to the certification hearing quickly and efficiently. I would hope that this costs disposition would assist in that goal."

WAIVER OF TORT CONSIDERED
In Reid v. Ford, 2006 BCSC 712, the court refused amendments pleading waiver of tort. The writer is co-counsel for the class in this action. He is bitter, particularly given that ...
In Lewis v. Cantertrot Investments Ltd. , [2006] O.J. 1061, the court confirmed that a waiver of tort issued could be certified as a common issue. The court concluded that it was not plain and obvious that waiver of tort required proof of the three pronged test for unjust enrichment. In later reasons, the court considered the costs (2006 OJ 1581). The defendant argued that costs should not be payable at this time, as no amounts were payable by the class to counsel at that time pursuant to the terms of the retainer agreement. The court disagreed stating: "Contrary to the submission of defendants' counsel, the agreement does not preclude the use of the fees portion of any costs award to pay for disbursements. I accept the submission of plaintiffs' counsel that the agreement contemplates that the entirety of any interim cost awards may be retained by the solicitors in trust to pay disbursements as they are incurred." The costs were fixed at $ 30,000 for legal fees and $ 16,506.51 for disbursements, about 1/2 of what was requested on a partial indemnity basis. The court stated: "Although the defendants, and their counsel, must I believe take some responsibility for the protracted course of the proceedings to date, I do not believe they can reasonably be required to indemnify the plaintiffs for an expenditure of time and effort that could have been avoided if the pleading and the certification motion had received more attention at the outset."

MOULD CLASS ACTION DISMISSSED
Dumoulin v. Ontario, 2006 A.C.W.S.J. LEXIS 1772: In an earlier decision, Mr. Justice Cullity gave leave to the plaintiff to file further evidence to address concerns he had about the management of the individual issues. Upon that evidence being filed, the court rejected certification. The court stated: "Issues that would remain to be determined on an individual basis would include whether the particular member of the class was exposed to dangerous levels of mould while in the courthouse, whether this was the result of the particular defaults of one or more of the defendants, and whether the class member suffered a consequential injury to his or her health. A determination of the first two of these issues would be complicated by the remedial work that has been performed at the courthouse since the end of the class period. If this was successful, it would mean that the degree of each member's exposure to dangerous levels of toxic mould, and the causal link between the defendants' respective breaches of duty and such exposure, would have to be determined by expert opinion evidence that could not be based on an examination of the conditions that now exist. The evidence on this motion is, in my opinion, sufficient to indicate that these questions are all potentially contentious and difficult and are unlikely to be resolved other than by way of individual trials."
COSTS CONSIDERED
Yordanes v. Bank of Nova Scotia [2006] O.J. No. 1553: The court considered the costs properly payable after a substantially successful application to strike parts of the Statement of Claim. The defendants sought partial indemnity costs of $175,000 in fees, from actual time records of $612,625 incurred on this pleadings motion (i.e. the yearly billings of your average BC law firm!). The court noted that the policy concerns expressed in earlier certification decision could apply as well to pre-certification motions, and reduced the fee portion of the costs award to $25,000 stating: "I consider the amount claimed in respect of lawyers' fees to be far in excess of that which the plaintiff should reasonably have expected, and be required, to pay in the circumstances of this case. While I do not question the entitlement of the defendants to launch a comprehensive onslaught on the pleading - and although the [*6] quality of their analysis and legal research was most impressive - their efforts went a long way beyond what I consider to have been reasonably required for the purposes of this pleadings motion. The considerations that should make a court reluctant to "second guess" lawyers' judgments of an appropriate expenditure of time and resources do not, I think, apply with the same force as, for example, on motions to certify proceedings, or motions for summary judgment."

CERTIFICATION DECISIONS ISSUED IN ALBERTA
The court certified a class action in Condominium Plan No. 0020701 v. Investplan Properties Inc., [2006] A.J. No. 368; 2006 ABQB 224. The plaintiff corporation was complaining that the property was in poorly constructed, and were pursuing the developers and other parties involved in the sale of the units. The corporation felt it was necessary to seek certification because it also wished to advance claims for damages on behalf of individual condo owners.
The court suggested that the CPA did not necessarily require that an action be commenced by a member of the proposed individual claim class (which the plaintiff corporation itself was not), although it is difficult to determine if this finding was contingent on the Plaintiff's agreement to apply to add a "warm body" plaintiff nunc pro tunc.
The court narrowed the class to original purchasers given the nature of the claims advanced. The court stated: "A class which includes second-hand purchasers is not only overbroad, it has the potential to generate conflict between class members and is to be avoided on this ground also. The interests in the common property of the current owners who are second-hand purchasers may be pursued as part of collective claims of the Corporation."
The court certified all the common issues even though they included misrepresentation issues. The court stated: "There is merit in settling all at once the facts of who said what to whom, rather than facing the prospect of making proof on these issues time and again in separate proceedings. The facts before this Court also demonstrate that certain public documents were created and distributed by some Defendants and that there were common statements to the public. Furthermore, the level of complexity in the case at bar does not go beyond that accommodated by class proceedings in Dutton, Bre-X, and Metera."
An investment class action was certified in Kristal Inc. v. Nicholl and Akers, 2006 ABQB 168.

COSTS AWARD ISSUED IN PEARSON
In Pearson v. Inco, 2006 A.C.W.S.J. LEXIS 1324, the Ontario Court of Appeal awarded $250,000 to the Plaintiffs in relation to their successful appeal of the costs decision. This covered all three levels of court. The court did factor into the award the fact that certification was only successful after the claim was substantially narrowed on appeal. On the other side of the equation, the court noted that the award of costs was supported by the fact that the claim was novel and in the public interest. The court set out a list of the factors it considered:
(1) Ontario, unlike other class proceedings jurisdictions such as British Columbia, has not sought to interfere with the normal rule that costs will ordinary follow the event.
(2) The costs must reflect what is fair and reasonable.
(3) The costs should, if possible, reflect costs awards made in closely comparable cases, recognizing that comparisons will rarely provide firm guidance.
(4) A motion for certification is a vital step in the proceeding and the parties expect to devote substantial resources to prosecuting and defending the motion.
(5) The costs expectations of the parties can be determined by the amount of costs that an unsuccessful party could reasonably expect to pay. A measure of Inco's reasonable expectations of costs is the amount it sought before the motion judge ($260,000).
(6) The views of the motion judge concerning the complexity of the issues and what is fair and reasonable.
(7) The case raised an issue of public importance.
(8) A fundamental object of the CPA is to provide enhanced access to justice.
(9) The appellant's claim substantially evolved from the claim brought before the motion judge.

ECONOMIC LOSS CASE SURVIVES
In Bondy v. Toshiba, [2006] O.J. No. 1665, the court declined to strike a claim relating to allegedly defective notebooks stating: " It is clear from the Supreme Court of Canada decisions and the appellate decisions, gathered by counsel, referred to in their factums and argued before me, as well as the discussions of the issue of pure economic loss both in Canadian Tort Law, (7th) Ed., by Mr. Justice Linden (Butterworths) and the Law of Torts in Canada, (2d) by Professor Fridman (Carswell) that developments in this area have been policy driven, that there are differences in the law among Canada, England, Australia and the United States, and that the law is evolving. Indeed, Linden J.A., in his text, at p. 601, argues that the fact that the court in Winnipeg Condominium did not deal with Junior Books Ltd. v. The Veitchi Co. Ltd., [1982] 3 All E.R. 201 (H.L.) could mean that Junior Books, which permitted an economic loss claim for poor workmanship without restriction, is "alive in Canada." "

CHICKEN AND EGGS IN SASKATCHEWAN
In Holland v. Saskatchewan, 2006 SKQB 99, the court allowed a pleadings motion to proceed in advance of certification, relying in part on the fact that pursuant to the definition in the Act, a class action is not a class action until certified.

DEFAULT JUDGMENT HEARD IN CERTIFIED CLASS PROCEEDING
Englefield v. Wolf, 2005 OJ 4895: This "unpaid wages from bankrupt company director" case had previously been certified when the defendant failed to appear. On application for judgment in default, the court awarded $ 286,089.68 to the class.
OPPOSITION TO EXAMININATION OF REPRESENTATIVE PLAINTIFF REJECTED
In Young v. Quebec (Procureur General), 2006 QCCA 226, the co-defendant, Quebec, opposed application to examine the representative plaintiff in the proposed class action. Interestingly, the plaintiff was prepared to consent, but Quebec opposed based on its role as defender of existing laws. Quebec claimed that existing provisions of Code of Civil Procedure (Que.) did not permit such examination. The Appeal Court held that Quebec did not have standing to appeal as it had no proper interest in the issue.

CRIMINAL INTEREST RATE BATTLES
Although the deductibles cases are over, the criminal interest rate cases have picked up the slack...
Section 9 powers can't be used for subsequent certification efforts: MacKinnon v. Moneymart, 2006 BCCA 148. The court ruled that the statutory provision giving the court certain powers to manage the case after refusing certification did not extend to allowing the plaintiff to reapply to certify the case separately against the defendants. However, the lower court should have allowed the Plaintiff's application to vary the original certification order to adjourn the decision in order to allow the defendant to amend to bring separate proceedings prior to dismissing certification outright.
Certification affirmed in Alberta pay day loan case: See Ayrton v. PRL Financial (Alberta) Ltd., 2000 ABCA 88. The writer acts for one of the defendants in B.C.
Certification was granted in a B.C. overdraft case (Parsons v. Coast Capital Savings Credit Union, 2006 BCSC 552) and an Ontario pay day loan case (McCutcheon v. The Cash Store Inc., 2006 OJ 1860). The writer acts for the latter defendant in B.C.
Moneymart's U.S. parent was kept in the pay day class action by the Ontario Court of Appeal: See Smith v. National Money Mart, 2006 OJ 1807 (CA)
The SCC dismissed Money Mart's bid to appeal the lower court decisions concluding that the arbitration and no-claim waivers did not preclude civil actions: Smith v. National Money Mart, [2005] S.C.C.A. No. 528

DISMISSAL OF CERTIFIED CLASS ACTION AGAINST LAW FIRM UPHELD
Elms v. Laurentian Bank, 2006 BCCA 86: The court held that the judgment dismissing the claim against the law firm was essentially fact-driven and there was no significant error of fact or law.

APPLICATION TO EXAMINE REP PLAINTIFF CONSIDERED
In Vermette c. General Motors du Canada limitée, 2006 QCCS 1717, the court refused to allow examination of the rep plaintiff in advance of the certification, but stated that examination could take place at the hearing itself (obviously a much riskier proposition!).

TAX CLASS ACTION STRUCK
Leblanc c. Québec (Ville de) 2006 QCCS 1279: Certain landowners using septic tanks sought to challenge a bylaw requiring them to pay taxes at the same rate as persons who were provided sewer services. The class action was struck based on the fact that: (1) a class action was unnecessary to challenge the legality of a municipal bylaw, (2) the matter had already been litigated in small claims court, and (3) there were limitation problems.

MOTION TO STRIKE IN INDIVIDUAL LITIGATION NOT BINDING ON CLASS ACTION
Baric v. Tomalk: [2006] O.J. No. 890: The federal crown was seeking to strike an individual action. Proposed class counsel intervened seeking an order that any ruling in this motion binds the federal Crown if it moves to strike out claims in the class action on the same grounds. The court refused to issue such an order: "I decline to make such an order. The TMJ litigation comprises both a class action suit and other individual ac-tions. Some of these actions are case-managed; others are not. At this point, the [*4] separate actions have not been consolidated; nor is there an order for trial of these actions together. The Baric action is not one of the suits case managed by Winkler R.S.J. at Toronto, although for convenience, Baric and some other litigants consented to joint examinations for discovery of the federal Crown, which have taken place. I am told that there are 36 actions pending naming the Attorney General of Canada as defendant or third party in the TMJ litigation. There is no uniformity of pleadings in these cases. While the TMJ plaintiffs do not wish to be caught up in a war of attrition by a powerful opponent, it would be unfair to impose a pleadings ruling on a party in respect of pleadings that are not before me, and in respect of which no motion has been brought and no notice provided."

APPLICATION TO STRIKE DISMISSED BUT STAY GRANTED
Renova Holdings Ltd. v. Canadian Wheat Board, 2006 F.C. 71: The plaintiffs alleged that during the course of its existence, the Wheat Board arbitrarily issued export licenses and licenses to process grains to individuals and corporations from regions outside a Designated Area without putting the payments into the pool for that area. Canada's application to strike was rejected, and then affirmed on appeal, although aspects of the claim in relation to the claim for misfeasance in public office were struck.
However, the court did stay the action. The court stated: "I have determined that, in substance, the Plaintiffs are challenging the legality of the Wheat Board's deductions of allegedly improper expenses from the pooled accounts which resulted in reduced payments to the Plaintiffs for their wheat over a number of years. I have also determined that the Plaintiffs cannot challenge the legality of the Wheat Board's actions through an action and that the administrative law remedy sought can only be obtained on application for judicial review. Nevertheless, on the record before me and for the above reasons, I decline to strike the statement of claim in its entirety. I will, however, for the reasons exposed in paragraph 53 above, strike the Plaintiffs' claims in administrative misfeasance in public office and abuse of public office. In respect to the Plaintiffs' claim in negligence for a breach of duty of care and a breach of fiduciary duty, I stay the action in order to preserve the parties' rights in the event they are successful in pursuing their administrative law remedy."


DOCUMENTS ORDERED
In Gagnon c. Orlando International School of Visual and Entertainment Design Corp. 2006 QCCS 1255, the court ordered production by the Plaintiffs of certain documents in relation to a proposed class action.

ACTION STAYED PENDING APPEAL
In Muroff c. Rogers Wireless inc., 2006 QCCA 467, the court stayed the underlying action pending an appeal to the SCC. The Quebec Court of Appeal had refused to enforce an arbitration clause.


SETTLEMENT AGAINST ONE DEFENDANT (ALMOST) APPROVED IN MACDONALDS
Currie v. McDonald's Restaurants of Canada Ltd., [2006] O.J. No. 813: The class proposed to settle against one of the defendants, the marketing company allegedly involved in embezzling certain prizes from a MacDonald's context. The court had some concerns with the fact that only $650,000 would be awarded, but after receiving further submissions about the financial condition of the settling defendant, the court was prepared to accept that the settlement amount was reasonable. The court also considered the fact that the distribution to the class would only be way of a cy pres distribution. The court agreed that there was no economic means of distributing the limited funds to class members. The court approved the distribution method notwithstanding that the funds were being applied to general charities as opposed to charities somehow directed to the class. The court held that the fact that the cy pres distribution only benefited the class as members of the general public was not a bar to approving the settlement.
However, the court held off on certifying the action against the settling defendant (a condition of settlement) until it heard fuller submissions from the non-settling defendants on certification, in order to avoid inconsistent findings of fact.
EXAMINATION ORDERED
The Court of Appeal ordered that the representative plaintiff answer certain merits based questions on discovery in Rabinovitch v. CIBC Asset Management Inc., 2006 A.C.W.S.J. LEXIS 1468

CERTIFICATION REJECTED IN IMMIGRATION CLASS ACTION
In Tihomirovs v. Canada (Minister of Citizenship and Immigration) 2006 F.C. 197, the court rejected certification. The key ground was that there was no cause of action. The plaintiff tried to get around an earlier decision addressing the merits of the case with two new arguments which he said were not previously addressed. However, the court held that these did not alter the result. Certification was also rejected on preferability grounds, on the basis that the limitation period for filing of judicial review proceedings would be too individualized.

MISREPRESENTATION CERTIFICATION AFFIRMED
Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2006 BCCA 96: The defendants appealed certification on the ground that "materiality" was improperly certified as a common issue in a misrepresentation context. The court rejected that submission stating: "In my view, this submission fails to recognize a critical difference between negotiated bilateral contracts and multi-party public solicitations. The knowledge of a purchaser of shares is not suggested as probative in the objective standard of materiality delineated in TSC and the Court in Inmet noted no inconsistency between that standard and the receipt of subjective evidence of the parties to the Inmet contract. Comment on the distinction was unnecessary because of the obvious difference between a proxy solicitation prepared unilaterally by the issuer to fulfil statutory disclosure obligations and a bilateral negotiated contract where the subject of knowledge of the contracting parties may be probative of the intention of the parties expressed in the document. The normal rule in contract is that the words used by the parties are to be construed objectively in accordance with their plain and ordinary meaning. That rule is modified is circumstances where the parties have a common intention to give words a specialized meaning different from the ordinary meaning that would otherwise be attached to them. The two parties to the Inmet contract were sophisticated mining companies who negotiated a specialized contract of some complexity. It was reasonable to explore the subjective knowledge of the parties in interpreting the meaning they attached to Inmet's obligation to disclose "material facts" that could have a "material adverse effect" on the operations or prospects of the mine and its application to the established facts. The facts here are entirely different. The Offering Memorandum is a document prepared unilaterally in compliance with statutory obligations and extends an offer to a wide range of investors in an open market and assumes no independent knowledge or sophistication on the part of prospective investors."

FORUM ARGUMENT REJECTED
In Lieberman v. Business Development Bank of Canada, [2006] B.C.J. No. 337, the court certified a pension case. The defendants sole objection was to forum. They alleged that it should be heard in Quebec. The court rejected that argument stating: "I have concluded that it is far from clear, as submitted by the BDC, that the civil law of Quebec will apply to all aspects of the plaintiffs' claims. While it appears that civil law concepts will be important to the issues to be decided, it is also likely that common law concepts will ultimately inform the decision-making in this case."
The court also held that B.C.'s cost regime was a "juridical advantage" stating: "I am satisfied that the "no cost" regime under the British Columbia Class Proceedings Act provides some juridical advantage to the plaintiffs in British Columbia arising from certainty and the fact that even if the costs to which the representative plaintiffs are potentially liable under Quebec law are small, they are still recoverable from the representative plaintiff personally. Further, while the Quebec costs regime offers some potential assistance, that is both uncertain and discretionary."
In terms of the suggestion that the witnesses were primarily in Quebec, the court made some other interesting comments regarding the nature of the class proceeding: "Most importantly, however, I am satisfied that the BDC's submission concerning cost and inconvenience are centred only on their interest in this litigation. That is particularly so of the suggestion that the plaintiffs could be replaced. That submission is insensitive to the plaintiffs' personal interest in this litigation and particularly insensitive to Mr. Lieberman's unique knowledge of and involvement in the history of the evolution of the BDC Plan. Further, while the BDC suggests that a different representative plaintiff could be found in Quebec, none has come forward. The deter-mination of these plaintiffs to have these issues tried by a court of competent jurisdiction should not be defeated by the possibility that there is no person who is both willing to come forward or appropriately qualified to take on the onerous responsibilities that Mr. Lieberman has willingly taken on in commencing these proceedings as a class action in British Columbia."

ONTARIO TOBACCO CLASS ACTION ENDS WITH A WHIMPER
Caputo v. Imperial Tobacco, [2006] O.J. No. 537: The court approved a discontinuance of a rejected class action. The court stated: "An earlier request for costs has been withdrawn. In my view the order should go on a "with prejudice" basis as against the representative plaintiffs only." The court also found that notice was unnecessary, given that no notice of the purported class proceeding had ever been issued.

BUT IN QUEBEC, THE ACTION ROLLS ON...
The court considered various requests for documents, requests for particulars, applications to strike, and evidentiary motions as part of the ongoing management of Quebec's tobacco class action: Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp. , 2006 QCCS 1098. The defendants were generally unsuccessful, or the matters were put over to later stage.

CERTIFICATION REJECTED ON THE PRAIRIES
In Soldier v. Canada, 2006 MBQB 50, the court rejected certification of a native rights class action, primarily on the basis that individuals band members to advance a collective treaty right.
In Jameson Livestock Ltd v. Tom's Grain & Cattle Co., 2006 SJ 93, the Court of Appeal overturned certification against one particular defendant. Prairie Livestock was alleged to have bought livestock at the auction held on February 11, 2003, and to have failed to remit to another party the full purchase price, having instead claimed a set off for a portion of the price.
The court found insufficient evidentiary basis of commonality against this defendant stating: "What is clear is that to establish any liability on the part of Prairie Livestock toward any member of the putative class, whether in debt, trust or conversion, it would be necessary for the plaintiffs to establish at least the following: (1) that Prairie Livestock bought cattle delivered to the auction by the member in question; (2) that the member did not receive the full purchase price less commission and fees owed to ALS in relation to the cattle purchased by Prairie Livestock; and, (3) that the sale of cattle by that member was a consignment sale....Accordingly, it would appear that the question of whether a particular sale was or was not a consignment sale may well be a question of fact, depending on the particular arrangement between ALS and a particular cattle producer. Indeed, the respondents argue, in their factum on this appeal, that whether the sales were consignment sales is a question of fact. In any case, there was no evidence on the application for certification to justify a conclusion that the answer to this question is necessarily the same for all members of the proposed class."
On the class definition, the court was concerned with over-inclusiveness stating: "It is clear that the class as certified is at least over-inclusive, for there is no evidence that all or even most of the unpaid producers who supplied cattle for the sale in question provided the cattle that were purchased by the appellants." However, the court accepted that this might have been cured by defining a subclass.

SETTLEMENTS
Ross v. Pettle: 2006 OJ 1612: The court approved settlement of this acupuncture infection class action, but had some interesting points to make about counsel fees. Class counsel sought a fee that represented approximately 44 per cent of the total recovery. Class counsel justified the amount on the basis that the proposed fees represented a multiplier of approximately 1.1 times the docketed time of the lawyers in the three firms who acted as co-counsel for the class. The court approved the fee, but said that it was doing so based on a discounted base fee. This discounted base was required due to the significant duplication of work and otherwise unnecessary expenditure of lawyers' time as a result of the use of three firms. The court said that the docketed entries for time spent reviewing e-mails and other communications between the three firms were numerous.
Lau v. Bayview Landmark Inc., [2006] O.J. No. 600: The court declined to approve a settlement that failed to include a bar order preventing the plaintiffs from pursuing the non-settling defendants for more than their individual allocation of fault.
Toevs v. Yorkton Securities, 2006 OJ 536: The court approved settlement of this securities class action for an amount representing 16.44% of their losses, as well as a class counsel fee representing a percentage of about 25% and a multiplier just under 1.
White v. Canada, 2006 BCSC 561: The court approved a 30% contingency fee in this sexual abuse case arising from allegations of the management of a sea cadets facility. A fixed fund was created against which abused claimants could advance claims.
Châteauneuf v. Canada, 2006 FCJ 363: Settlement was approved in a pension case involving the issue whether the "repayments", "surplus" or "experience ratings" from group annuity policy G-522 of the Canadian Government Annuities service should or should not have been allocated to the class members in such a way that their annuities increased.
Davies v. Clarington, 2006 OJ 1307: Although a bit unclear from the judgement, it appears that the parties to this train derailment case had essentially reached a settlement save for the allocation of fault to a particular defendant. The court was asked to rule on this particular issue. The court found no liability against that defendant.
Landry c. Syndicat du transport de Montréal (Employés des services d'entretien)2006 QCCS 1623: Illegal strike action settlement. The court did reduce the fee award to 1.6 (from the 2.0 proposed).

QUEBEC FUND'S OBJECTION TO SETTLEMENT DISMISSED
In Fonds d'aide aux recours collectifs c. Option Consommateurs, 2006 QCCA 441, the court held that the Fonds did not present a proper objection to the form of settlement in the Quebec Easyhome settlement, which settlement included a $30,000 payment to the Option Consommateurs. The decision was based primarily on the limited way in which the Fonds argued the point at first instance, rather than a general approval of the nature of the payment received by Option Consommateurs.

INFECTED FOOD CASE CERTIFIED
See Gratton c. 2855-6512 Québec Inc. 2006 QCCS 1894.

PLAINTIFF GIVEN ACCESS TO LIST OF CLASS MEMBERS AFTER CERTIFICATION
In Thibault v. St Jude Medical Inc. 2006 QCCS 2025, the court held that confidentiality concerns did not prevent the disclosure of the list of class members after certification, as the theory was that all class members were agreeable to having class counsel act by their decision not to opt out. The court declined to require that the defendant provide evidence of compliance with the order on direct notice, stating that it should be assumed that the defendants carried out the order in good faith.

TRUCKERS MEAL TAX CASE TOSSED AGAIN
Smith v. Canada (Attorney General), 2006 BCCA 237: Appeal from the Crown's successful application dismissing the truck drivers' proposed class action. The truck drivers claimed that the government's meal deduction policy and section 67.1 of the Income Tax Act were discriminatory. Under the Income Tax Act, transport employees were entitled to deduct meal expenses. The truck drivers claimed they should have been allowed deductions for meals at the rates the federal government paid its employees for meal allowances when they travelled on business. The applications judge held that it was illogical to compare a tax deduction with an employment benefit and, consequently, the truck drivers' claims was doomed to fail. The Court of Appeal agreed, and held that the federal government was not obliged to confer a tax benefit on any particular group.
WAL-MART WINS APPEAL
In Pednault v. Compagnie Wal-Mart of Canada, 2006 QCCA 666, the Quebec Court of Appeal rejected an appeal of a lower court decision holding that the plaintiff's dispute about a store closure was not properly within the jurisdiction of the court.
FINANCE CHARGE CASES CONSIDERED IN QUEBEC
Quebec Superior Court Justice Marie-France Courville gave Sheri Aberback-Ptack the green light to proceed with her request to sue American Express on behalf of everyone like her who incurred a finance charge or interest penalty after paying their Amex Bank bill by either Internet, telephone or automatic banking machine on or before the due date. Arthur Wechsler, the Montreal lawyer representing Averback-Ptack, says the Amex Bank illegally penalizes consumers who pay their Amex bills on time through those three methods: Aberback-Patck vs. Amex Bank of Canada, 2006 QCCS 1425.
The court has refused to certify a case seeking to challenge certain fees and taxes charged to class members in relation to loans granted by the National Bank. The case was rejected based on the cause of action requirement: Trudel c. Banque Nationale du Canada, 2006 QCCS 1172.
In Option Consommateurs c. Banque de Montréal, 2006 QCCS 1398, the court stayed several proposed credit card class actions pending a certification decision in another lead case.

NEW FILINGS
Nationally:
A series of class actions have been filed against GM in relation to alleged gasket problems on a range of vehicles. The writer is among one of the counsel groups.
Ontario:
Former Ontario finance minister Gregory Sorbara and company founder Vic De Zen are among eight former and current officials with Royal Group Technologies Ltd. named in a class-action lawsuit. The Canadian Commercial Workers Industry Pension Plan allege that Royal Group and the eight company officials were "oppressive" and "unfairly prejudicial" to shareholders because they failed to disclose a series of related-party transactions that ultimately triggered a criminal investigation.
A class-action lawsuit has been filed in Windsor on behalf of Canadians who received potentially tainted bone and tissue fragments originating from a defunct U.S. company. Greg Monforton acts for the proposed class.
British Columbia:
Kotai v. BC Ferries: David Varty is counsel for the proposed class in relation to the sinking of a B.C. Ferry.
Hanik v. Astrazeneca: Seroquel class action, Steven Heringa is counsel for the proposed class.
Quebec:
Jasmin v. Banque Amex: Objection to payment date calculation at automatic tellers.
Lavigueur v. Commission Scolaire Marie Victorin: Class action alleging school boards improperly encouraged Ritalin and other drug usage by students.


As always, if I've missed any news, please let me know.
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